If a Prosecutor Breaks the Law in Secret, Does the Crime Exist? Not According to Texas Prosecutors.

Illustration: Adam Maida for The Intercept/Getty ImagesIllustration: Adam Maida for The Intercept/Getty Images

Shannon Edmonds and Stacey Soule looked confident sitting before a panel of lawmakers in the Texas Capitol late last month. Soule is the state’s prosecuting attorney, whose office litigates cases before the state’s highest criminal court, the Court of Criminal Appeals. Edmonds is a staff attorney and the government relations expert for the powerful Texas District and County Attorneys Association. As such, he’s used to lawmakers heeding his counsel; criminal justice reform is nearly impossible without the support of his association.

The pair was sitting before the House Criminal Jurisprudence Committee for a hearing regarding prosecutorial misconduct and ineffective assistance of defense counsel. Soule was there with what sounded like good news. She told the committee that while cases involving prosecutorial misconduct have “dominated discussions about the integrity of our criminal justice system in recent years,” she was “pleased to report that those cases have become less prevalent.” She’d done the research and found that over the last 12 months, the Court of Criminal Appeals had only granted relief four times based on a claim that prosecutors had committed misconduct by withholding evidence.

When it was his turn to speak, Edmonds applauded Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.

Of course, looking at the few cases where the notoriously rigid Court of Criminal Appeals has granted relief to a defendant on a claim of prosecutorial misconduct doesn’t seem like the best metric for determining that misconduct’s prevalence. Just days before the hearing, a district court judge in Fort Worth had issued a scathing opinion in the death penalty case against a man named Paul Storey, who was sentenced to die for a 2006 murder at a putt-putt golf course. At his trial, prosecutors told the jury that the victim’s parents, Glenn and Judy Cherry, believed the death penalty was an appropriate punishment for the murder of their son, Jonas. But that wasn’t true. In fact, the Cherrys were adamantly against the death penalty, which they had communicated to prosecutors.

When recently questioned under oath about their actions in the case, the prosecutors said they did nothing wrong — claiming that they told Storey’s defense attorney about the Cherrys’ opposition and then later that Glenn Cherry had changed his mind during the trial and did want Storey to get death. The judge has recommended that Storey be resentenced to life in prison. It will be up to the Court of Criminal Appeals to decide whether that ruling will stand, and although the court is generally supposed to honor the trial judge’s findings, it’s not a given that it will.

Prosecutorial misconduct often takes years — and a fair amount of luck — to unearth. (In Storey’s case, it took nearly a decade.) Since that’s the case, it hardly seems fair to use only cases in which a court has granted relief as a measure of the extent of misconduct.

Known Unknowns

Daniel Medwed, a professor at Northeastern University’s law school, says that looking at court opinions to measure prosecutorial misconduct can get you only so far. Saying that you can determine the level of misconduct through appellate court decisions presupposes two things: “first, that the misconduct has come to light; and second, that someone has taken the initiative to raise it as an issue,” he said. “And both of those are big hurdles.”

For starters, one of the best understood forms of misconduct, where exculpatory evidence is withheld — known as a Brady violation, after the landmark court case Brady v. Maryland — by definition means that the information was hidden. Trying to ferret it out can take not only years, Medwed says, but also a decent amount of “fluke and happenstance.” And even where the conduct is more obvious — in addition to Brady violations, things like inappropriate closing arguments (such as in the Storey case), the over-coaching of witnesses, or suborning perjury are considered misconduct — whether the courts will sanction the action is hardly certain. That is because of so-called harmless error analysis, in which a judge may conclude there was misconduct, but that relief from the conviction or sentence isn’t warranted because the misconduct didn’t impact the outcome of the case. “No harm, no foul kind of thing — except it is a foul. But it didn’t cause harm, as far as [the judge] has decided,” he said. “A lot of us would say that’s ridiculous; how could you ever measure the impact of an egregious closing argument?”

Plea bargaining also complicates the ability to understand the pervasiveness of misconduct. Fully 95 percent of criminal cases are resolved by plea, but generally, as part of that process prosecutors are not required to turn over discovery materials to the defense — evidence against the defendant or evidence that may be exculpatory or mitigating — that would help them to evaluate whether the plea offer is fair. And, for the most part, taking a plea means waiving many rights, including to appeal. “So, who knows what misconduct happens there, right?” said Angela Davis, a longtime defense attorney who was director of the venerable D.C. Public Defender Service before becoming a professor of law at American University.

Prosecutors will often overcharge a defendant as a means of pressuring the person into taking a plea — slapping on a slew of charges, some of which they may ultimately never be able to prove beyond a reasonable doubt. And “a lot of times, it is before the defense attorney even has an opportunity to investigate the case,” she said. “But it looks like a good deal and you have to tell your client about it, but you haven’t had a chance to even get basic discovery — much less discover misconduct.”

Given the circumstances, says Medwed, looking at the number of cases where relief has been granted based on a Brady violation should be considered “just the tip of the iceberg.”

A Snitch in Time

Perhaps no one knows this better than Scott Sanders. A public defender in Orange County, California, Sanders has spent the last five years attempting to unravel a misconduct scandal that has infected both the county district attorney’s office and the county sheriff’s department. The misconduct goes back decades and has impacted an unknowable number of cases. Widely known as the Orange County snitch scandal, prosecutors and sheriff’s deputies for years utilized a secret jail informant program to generate questionable evidence against defendants, often in violation of their constitutional rights. And, as it often happens, it was just a fluke that Sanders was able to uncover what had been going on for years; he happened to be assigned to two separate capital cases and noticed in the discovery materials that each of his clients had allegedly made confessions to the same jailhouse informant. He pulled the thread and was ultimately able to show a district judge that county law enforcers had been engaged in, and hiding, their informant scheme for years. The fallout from Sanders’s discovery is still ongoing — even as the longtime Orange County District Attorney Tony Rackauckas has maintained that his prosecutors didn’t intentionally do anything wrong and even managed last week to survive the primary election. Sanders said 18 criminal cases tied to the scandal have been reversed to date, with charges dismissed or reduced, or new trials granted.

And he’s sure the true number of cases impacted by the misconduct is far higher, but the cases are hard to identify — and where they are decades old or involved a plea deal, there is little recourse for defendants. He says because he is employed by a public defender office where lawyers are working together on a daily basis, he has an advantage in his attempts to root out misconduct. But for the most part, defense lawyers who practice alone, whether paid or court-appointed, are siloed from one another, making it harder to compare notes on cases the way Sanders has been able to do. And lawyers who come forward with allegations are putting at risk their ongoing relationships with prosecutors’ offices, he says, and even with judges, many of whom in Orange County and many other jurisdictions are former prosecutors. “In our instance,” he said, “we needed a trillion things to come together to even have that opportunity to learn that this [misconduct] existed.”

Alexandra Natapoff, a professor of law at the University of California, Irvine says if it weren’t for Sanders, it’s likely the public would never know about the rampant misconduct in Orange County. And that, she says, is because the system isn’t designed for transparency. “When I think about this question of why do we not know about prosecutorial misconduct, and we don’t, why do we not know about [the extent of] wrongful convictions, and we don’t, why do we not know about the routine systemic failures that occur in cases every day that players within the system get to view, but are very hard to view from the outside — it is because the system is not designed to be externally accountable,” she said. “It is designed to be adversarial and our adversarial system is flawed.”

What little public accountability exists is borne on the back of defendants who actually exercise their right to trial. “When a defendant goes to trial, that is the moment we learn the most about how our criminal system works,” she said. “When the defendant demands information, then the public gets to learn about it; when the defendant challenges prosecutorial misconduct, then the public learns about it.” But the plea process cuts off that access, and as a defendant cedes his right to information, “the public also loses access to that information and accountability.”

Part of the movement of reforming the criminal justice system is about rethinking the trust we put into its institutions — police, prosecutors, courts, and judges. “For a long time, we’ve gone on the assumption that they’re doing their jobs and acting in the public interest, and we’ve created rules of deference and secrecy in order to protect their ability to do that,” she said. “As soon as you have concerns about the ways that they’re doing their jobs, deference and secrecy are no longer good policies. And I think that what we’re seeing throughout the criminal system is a new sense that there needs to be more accountability, that there needs to be more transparency … because we understand that the system requires that for fair, accurate, and transparent functioning and that the old model of deference to these institutions is no longer a workable one.”

Davis is of a similar mindset. After decades of thinking and writing about prosecutors, she says the answer lies in electing progressive candidates who are committed to “fundamentally different values and views and visions of the criminal justice system.” She says we need more prosecutors like Larry Krasner in Philadelphia who, among other things, is now compiling a comprehensive list of police officers whose court testimony may be questionable, information he will have his prosecutors turn over to defense attorneys. And prosecutors like Kim Foxx in Chicago, who has promised bail reform and ending the practice of overcharging, among other changes. “You need people who actually have the will to be fair,” she said. “I think that takes new vision.”

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